Citation Nr: A21019458 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 211004-188953 DATE: December 7, 2021 ORDER Entitlement to an effective date of May 1, 2015 for Dependency and Indemnity Compensation is granted. FINDINGS OF FACT 1. The Veteran died in May 2015. 2. It is at least as likely as not that the appellant submitted VA Form 21-534EZ in June 2015. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date of May 1, 2015 for Dependency and Indemnity Compensation have been met. 38 U.S.C. §§ 1114(l), (s), 5103, 5103A, 5107(b), 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from March 1962 to March 1965, including service in Korea. The Board is grateful for the Veteran's service to our country and wishes to express its condolences to the appellant for her loss. A rating decision was issued under the legacy system in October 2018 and the appellant submitted a timely notice of disagreement. In August 2019, the agency of original jurisdiction (AOJ) issued a statement of the case (SOC). In November 2020, the appellant submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and opted into the modernized review system, also known as the Appeals Modernization Act (AMA), from the August 2019 SOC. In March 2021, the AOJ issued a supplemental claim decision which denied the claim based on the evidence of record at the time of that decision. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). In May 2021, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a March 2021 decision. In May 2021, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior March 2021 decision. Therefore, the Board may only consider the evidence of record at the time of the March 2021 decision. In the October 2021 VA Form 10182, Decision Review Request: Board Appeal, the appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. 1. Entitlement to an earlier effective date for Dependency and Indemnity Compensation The appellant contends that an effective date earlier than November 6, 2017 is warranted for the award of Dependency and Indemnity Compensation (DIC). Specifically, the appellant contends that she submitted a claim for DIC in June 2015 and she called to follow up on the claim several times, but her calls were not returned, prompting her to file a second application in November 2017. She contends she is entitled to DIC from May 2015, when she asserts, she submitted her initial claim. Generally, the effective date for an award of service connection and disability compensation is the day following separation from active service, or the date entitlement arose if the claim is received within one year after separation from service; otherwise, for an award based on an original claim, a claim reopened after a final allowance, or a claim for an increase, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. However, for claims involving service-connected death after separation from service, an exception applies. If an application for DIC is received within one year from the date of death, the effective date of the award shall be the first day of the month in which the death occurred. Otherwise, the effective date is the date of receipt of the claim. 38 U.S.C.A. § 5110 (d); 38 C.F.R. § 3.400(c)(2). An application for VA compensation must generally be a specific claim in the form prescribed by the VA Secretary (i.e., VA Form 21-534EZ). 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Prior to March 24, 2015, a claim could be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." See 38 C.F.R. § 3.1(p) (2014). But see 38 C.F.R. § 3.1(p) (2015) (now providing that a "claim" must be submitted on an application form prescribed by the Secretary); 79 Fed. Reg. 57,696 (Sept. 25, 2014) (eliminating informal claims by requiring that, effective March 24, 2015, claims be filed on standard forms). In this case, the RO established an effective date of November 6, 2017, for the grant of service connection for DIC benefits, based on the date the claim was received. The May 2021 rating decision explains that the evidence fails to show that VE received a claim from the appellant prior to November 6, 2017. Indeed, the only documents associated with the claims file from the time of the Veteran's death in 2015 until the time of the appellant's November 2017 claim for DIC are a first notice of death, a letter notifying the spouse of termination of payment of VA benefits, and another notification letter regarding her receipt of the Veteran's benefit for the month in which he died. The appellant has consistently reported visiting her local VA office on May 12, 2015 and was told she was ineligible for benefits and filing a claim would be futile; she asked to fill out paperwork just in case, but the VA specialist she reports working with advised her that she was not eligible to receive benefits and there was "nothing to sign." See November 2017 and October 2020 Correspondence. She submitted a screenshot showing that on May 12, 2015 the claims file was edited by "Eddie." The record was edited twice, and VA Form 21-534EZ was registered. See November 2020 Correspondence. This is consistent with the contents of the Veteran's claims file, as the above-noted notification letters were associated with the Veteran's claims file on May 12, 2015. The appellant reported submitting an application dated May 12, 2015. In May 2019, the appellant submitted a copy of VA 21-534EZ, Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child, printed and dated (by computer) May 12, 2015. The application was filled out and signed by hand. In October 2020 correspondence, the appellant noted that the publication date of form was December 2012. The Board notes that the publication date of the appellant's November 2017 VA 21-534EZ is July 2015, one month after she reports submitting the application. The Board finds that the publication date of the form and the digital dating of the form is consistent with the appellant's account of, and the screenshot showing, that a VA Form 21-534EZ was registered on May 12, 2015. In November 2017, the spouse submitted a completed application for benefits, on which she indicated that this was a second submission. At the same time, she submitted a letter reporting that she visited her local VA office in May 2015 and was told she was ineligible for benefits and filing a claim would be futile. She contended that she mailed a completed survivor's benefit claim in June 2015, that she called to follow up on the claim several times, but her calls were not returned. Under the common law mailbox rule, if a letter properly directed is proved to have been either put into the post office or delivered to the postman, it is presumed, from the known course of business in the post office department, that it reached its destination at the regular time and was received by the person to whom it was addressed. Rios v. Nicholson (Rios I), 490 F.3d. 928, 930-31 (Fed. Cir. 2007) (quoting Rosenthal v. Walker, 111 U.S. 185, 193 (1884)). The presumption is not a conclusive presumption of law, but a mere inference of fact, founded on the probability that the officers of the government will do their duty in the usual course of business. Rosenthal, 111 U.S. at 193 (quoting Huntley v. Whittier, 105 Mass. 391, 392 (1870)). If evidence is presented that the letter was never received, the evidence must be weighed by the trier of fact with all the other circumstances of the case in making a decision on the question of whether the letter was actually received. Id. at 194 (quoting Huntley, 105 Mass. at 392). In the very recent case of Anania v. McDonough, No. 2020-1086 (Fed. Cir. June 10, 2021), the United States Court of Appeals for the Federal Circuit rejected the United States Court of Appeals for Veterans Claims' (CAVC) holding that self-serving affidavits are per se insufficient to establish the presumption of receipt under the mailbox rule. In so doing, the Federal Circuit reversed prior CAVC precedent. Under the rule as articulated by the Federal Circuit, all that is required for the presumption to attach is evidence demonstrating that the mail was "properly addressed, stamped, and mailed in adequate time to reach the [destination] in the normal course of post office business," or "in lieu of direct proof of mailing, . . . evidence of mailing custom or routine practice." Rios I, 490 F.3d at 933. As noted above, in November 2017 and October 2020 statements, the appellant stated that she visited her local VA office to begin the application process on May 12, 2015 and mailed her application in June 2015. Based on the totality of the circumstances and in light of the holding in Anania, the Board finds that the appellant has submitted evidence sufficient to trigger application of the mailbox rule. Based on her statement, the screenshot corroborating her statements, and the application has produced, the Board finds that it is at least as likely as not that her May 12, 2015 letter was properly mailed and received by VA in June 2015, within one year of the Veteran's death. Resolving reasonable doubt in the appellant's favor, the Board finds that an effective date of May 1, 2015 is appropriate for the payment of additional compensation benefits for the Veteran's dependent spouse. Under the applicable rules, cited above, the appellant's claim for DIC was received within one year from the date of death, the effective date of the award shall be the first day of the month in which the death occurred. 38 U.S.C. § 5110 (d); 38 C.F.R. § 3.400(c)(2). Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O. Halpern The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.